Chowning v. Cox
| Citation | 22 Va. 306 |
| Parties | Chowning v. Cox and al.[*] |
| Decision Date | 13 February 1823 |
| Court | Supreme Court of Virginia |
[Syllabus Material] [Syllabus Material]
This was a suit brought in the Williamsburg chancery court, and afterwards removed to the Fredericksburg district.
William Chowning, filed his bill against Peter P. Cox and Elizabeth Thompson, stating the following case: that on the 18th day of November, 1803, an agreement was made between the complainant, and the said Elizabeth Thompson, by which the latter agreed to sell and convey to the complainant, a tract of land in the county of Westmoreland, called Laurel Grove in consideration that the complainant would pay certain debts due from the said Elizabeth Thompson, set forth in the agreement, together with a sum of money to herself, making in the whole, 8761.: that one of the debts to be paid by the complainant, was due to Peter P. Cox, and secured by a deed from the said Elizabeth to the said Peter, dated the 8th of August, 1801, conveying the same tract of land, and stating the consideration to be $ 1,500; with a condition that the said Peter should hold the said land in trust, to secure the payment of the said sum, with interest: that at the time of entering into agreement aforesaid, the complainant understood that there was a mortgage on the said land to the said Cox and nothing more: that the complainant made several payments under his agreement, was put into possession of the land, and was preparing, by great exertion, to pay the purchase money, and exonerate the land from this incumbrance, when in 1806, after he had paid the said Cox, the sum of 300l. 8s. in part of his debt, he was informed that the title to the said land, was doubtful: that in consequence of this information, the complainant filed a bill of injunction against Cox and Thompson, and one who, as the complainant was informed, claimed title to some part of the said tract of land: that the injunction was granted, and afterwards dissolved: that immediately after the dissolution of the injunction, the said Peter P. Cox undertook to sell the said land, without giving any warning to the complainant, or requiring payment of the balance due, and the said land was put up to public sale, and bought by a certain ; whether on his own account or that of the said Cox, the complainant did not know: that the deed to Cox, can only be considered as a mortgage, because there is no particular person named as trustee, who might act impartially between the debtor and creditor: that the trust is uncertain and equivocal, as there is no covenant on the part of Cox, to receive payment from the grantor, and to release her, or re-convey the land: that if the deed is a mortgage, the proceedings of the said Cox, are illegal and improper: that he knew of the agreement between the complainant and Elizabeth Thompson, and had received from him two payments under that agreement: that Cox has caused the whole tract to be sold to pay the balance due; and threatens to bring an ejectment against the complainant. He, therefore, prays that the said Cox, and Elizabeth Thompson, may be made defendants: that he may be permitted to redeem upon paying the principal and interest due to the said Cox; and that the latter may be compelled to release all his claim to the said land, & c.
The defendant Cox answered, that the $ 1,500 lent to the said Elizabeth Thompson, were not his own, but the money of his wards, the children of his brother; to secure the payment of which, the deed of trust mentioned in the bill was executed: that he advertised the said land for sale, in pursuance of the deed of trust; but the sale was injoined at the suit of the complainant, under pretence that the said Elizabeth Thompson's title to the said land was defective: that the injunction was afterwards dissolved, and the land again advertised for sale on the premises: that the complainant and many others attended; when the complainant, before the sale commenced, asked the respondent if he would receive from him eleven or twelve hundred dollars, and give a longer time for payment of the balance: that the respondent, induced by the distress of the complainant's family, agreed, that if the said sum was paid in one hour, he would give a longer time for the balance: that the respondent waited at least three hours, and did not commence the sale, until he was informed by the complainant, that he had been disappointed in obtaining the money: that the sale was then commenced, and several persons made bids for the land, but no one on account of the respondent: that the land was purchased by Mr. William Taylor for 6261. for himself, and not for the respondent; who offered to let the complainant have it, if he would pay the sum he had bid for it in eight or ten days: that the said deed was always treated by the complainant and Elizabeth Thompson, as a deed of trust, and not a mortgage: that the respondent admits, that he has received from the complainant, the sum of 300l. 8s. in part of the sum due, which, with interest, leaves a balance due to this respondent's wards, of 272l. 13s. 8d.: that as to the title of the said Elizabeth to the said land, he believes it to be unimpeachable, & c.
The answer of Elizabeth Thompson, confirms the answer of Cox as to the consideration of the deed of trust: that she considered it as a deed of trust, and not a mortgage: that the complainant, in his treaty with her for the purchase of the said land, urged a reduction in the price, because the said Cox might, at very short notice, sell the land: that her title is undeniable: that since the sale, the said Cox as trustee, has paid the respondent $ 400, for which sum the complainant shall have credit in his contract for the sale of the land to him, and the balance, if any, she will pay to him, on his producing evidence that he has paid or secured the payment, to Forbes and Whitlock, according to his agreement with her; but if the deed aforesaid shall be considered a mortgage and not a...
To continue reading
Request your trial